from the what-are-you-afraid-of? dept

It seems the RIAA is, once again, showing its true colors. When Charlie Nesson asked the court in the Tenebaum case to allow a live internet broadcast of a hearing to dismiss the case, the RIAA protested. This was odd, on its face, since the RIAA has insisted from the beginning that the reason for the campaign is educational. That was the point made by Judge Gertner in granting the request -- and she even pointed out how odd it was that the RIAA didn't want that to happen.

It turns out that the RIAA is so against the idea that it's gone and asked an appeals court to overturn the ruling, which even has entertainment industry lawyers who support the lawsuit strategy questioning the RIAA's move here. Of course, it's not surprising to find out that the RIAA has been misleading (at best) about its intentions with these lawsuits, but it is rather amusing at how hard they're fighting this, even knowing how it shows their hypocrisy.

from the educate-us,-please dept

Harvard Law prof. Charlie Nesson has been leading a case challenging the constitutionality of a core part of the RIAA's continuing lawsuit strategy. Late last year, he asked a judge if the trial itself could be broadcast live over the internet, noting that the RIAA claimed the lawsuits were part of its education campaign, so he couldn't see why they would object. Of course, they did object, but the judge has sided with Nesson, and the court proceedings will be broadcast live next Thursday, January 22nd on the Berkman Center's website. The judge repeated Nesson's points in responding to the RIAA's objection, noting that the RIAA's objection seemed "curious" considering its previous claims of this being an educational campaign. Nesson and his law students had clearly done their homework on the judge. As the article notes, in 2007, the judge (Nancy Gertner) had testified on Capitol Hill on the importance of broadcasting more trials over the internet and television.

from the should-be-fun dept

A bunch of folks have sent in the story that Charles Nesson of Harvard, who is challenging the constitutionality of the RIAA's lawsuits against file sharers, has filed a motion asking that the trial be broadcast live over the internet, amusingly using the RIAA's own words to support his request. From the beginning, the RIAA has always insisted that its lawsuits were part of a broad "educational campaign" to teach people about the evils of file sharing. Nesson notes that, if this is true, the RIAA should obviously have no objection to such a trial being broadcast online. Somehow, it seems likely that there will be an objection.

Given that the RIAA has supposedly given up its legal strategy -- while still moving forward with existing cases -- is anyone taking bets on how long it will be until the RIAA actively tries to back out of the Tenenbaum lawsuit altogether? This case is pretty much the last thing the RIAA actually wants to go to court -- whether broadcast or not. Even if it wins the case in the end, this lawsuit is going to involve a lot of dirty laundry airing that the RIAA probably doesn't want out there.

from the bringing-some-sanity-back dept

The heart of Charles Nessons' case against the RIAA is that the copyright law cited to attack file-sharers is unconstitutional due to the ridiculous statutory fines put on copyright infringement. The original fines were really meant for commercial copyright counterfeiters -- and the law was never intended to be used against random internet users sharing some songs off of their computer with no profit motive at all. The law also didn't anticipate songs being sold for less than $1. So, with statutory fines for each act of infringement sitting between $750 and $150,000, there are some big problems. Luckily, it appears some judges are beginning to agree with the idea that these fines are ridiculous. Ray Beckerman highlights a recent ruling by District Judge Shira A. Scheindlin in the Southern District of New York, where Schendlin stated:

"At the end of the day, 'statutory damages should bear some relation to actual damages suffered'... and 'cannot be divorced entirely from economic reality'"

Beckerman notes that a more reasonable standard would be somewhere between zero and nine times the actual damages -- with the lost profit on a single download being approximately $0.35 -- meaning damages per song should range from $0 to $3.15 per song file. Somehow, I'm guessing the RIAA will disagree.

from the this-ought-to-be-worth-watching dept

People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It's not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it's been brought up in court, the arguments haven't been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA's strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA's efforts in a court filing, where it's noted that the very basis for many of the RIAA's lawsuits is very likely unconstitutional.

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called "theft" in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That's because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:

Imagine a statute which, in the name of
deterrence, provides for a $750 fine for each mile-per-hour that
a driver exceeds the speed limit, with the fine escalating to
$150,000 per mile over the limit if the driver knew he or she
was speeding. Imagine that the fines are not publicized, and
most drivers do not know they exist. Imagine that enforcement of
the fines is put in the hands of a private, self-interested
police force, that has no political accountability, that can
pursue any defendant it chooses at its own whim, that can accept
or reject payoffs in exchange for not prosecuting the tickets,
and that pockets for itself all payoffs and fines. Imagine that
a significant percentage of these fines were never contested,
regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of
whether they can prevail in front of an objective judicial body.

Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.

This Court should exercise its inherent power to allow
background image redress to Joel Tenenbaum for Plaintiffs' abuse of law and
federal civil court process. As detailed throughout this brief,
Plaintiffs are using any and all available avenues of federal
process to pursue grossly disproportionate -- and
unconstitutional -- punitive damages in the name of making an
example of him to an entire generation of students.
The case at hand warrants the use of inherent federal power
not just because of what Plaintiffs are doing to Joel Tenenbaum
in this Court, but because of the manner in which Plaintiffs are
abusing the federal courts all across the country. Plaintiffs
have pursued over 30,000 individuals in the same way they have
pursued Joel....
For these 30,000
individuals, Plaintiffs have wielded federal process as a
bludgeon, threatening legal action to such an extent that
settlement remains the only viable option. Joel Tenenbaum is
unique in his insistence, in the face of it all, on having his
day in court. The federal courts have an inherent interest in
deciding whether they will continue being used as the bludgeon
in RIAA's campaign of sacrificing individuals in this way.

The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a "perversion of lawfully initiated process to illegitimate ends," and citing the case law that suggests such behavior should be punished by the courts: "One who uses a
legal process ... against another primarily to accomplish a
purpose for which it is not designed, is subject to liability to
the other for harm caused by the abuse of process."

And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA's own words against it. First, the writers note (and cite the relevant cases) that even if there is a "proper purpose" behind the filing, it's an abuse of process if the primary purpose in filing the lawsuit is different than the "proper purpose" behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its "deterrence" educational program. From deterrence, Nesson shows how it's actually used as more of a bludgeon to get students to settle, which is clearly not the "proper purpose" of the law:

In essence, Plaintiffs are using the prosecution of Joel
Tenenbaum to extort other accused infringers: the accused are
told to either pay the settlement, or else be exposed to the
protracted litigation and potentially astronomical damages that
Joel now faces. See Milford Power Ltd. Partnership by Milford
Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass.
1996) (holding that "the essence of the tort of abuse of process
is the use of process as a threat to coerce or extort some
collateral advantage not properly involved in the proceeding").
The intimidation tactics are working: of the 30,000 accusations
the RIAA has leveled against individuals, only a single
defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a
new trial).

The RIAA intimidates and steamrolls accused infringers into
settling before they have their day in court and before the
courts can weigh the merits of their defenses. The inherent
dangers in allowing a single interest group, desperate in the
face of technological change, led by a voracious, cohesive,
extraordinarily well-funded and deeply experienced legal team
doing battle with pro se defendants, armed with a statute
written by them and lobbied and quietly passed through a
compliant congress, to march defendants through the federal
courts to make examples out of them should lead this Court to
say "stop."

This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees' nest of Harvard Law.

from the wrong-direction dept

When the "Gowers Report" on copyright first came out in the UK, we pointed out that it had a lot of bad ideas included. The one good point was that copyright length shouldn't be extended any more. So, now that the UK is planning to ignore that one good suggestion, it's moving forward with plans to implement the bad suggestions in the report -- such as increasing the fines for online copyright infringement by 10x. To be fair, this is focused just on "commercial-scale" copying where someone is profiting from the infringement. But, given how the recording industry works, how long until they look for ways to expand that definition or increase the fines for "personal copying" to keep them "more aligned" with the fines for commercial copying?